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The Constitutional Court as a Contingency Plan for Turkey’s Future Regarding the Internet

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Annenberg-Oxford 2014 alum Yusuf Salman discusses Turkey’s Constitutional Court which, in Spring 2014 deemed the Turkish Government’s Twitter and YouTube ban unconstitutional, and last week ruled that a September legislation’s attempt to increase the authority of the Turkish Communications Authority was unconstitutional as well.

The Turkish Constitutional Court, the highest court in the country, has recently become a beacon of hope for several movements against censorship. Attending to complaints from the citizens or matters of conflict on the internet has not been easy for the legal authorities in Turkey. In fact, representatives of the Committee to Protect Journalists (CPJ) recently reported that President Recep Tayyip Erdoğan stated that he is “increasingly against the internet every day.” Erdoğan and many government officials continue their battle against the internet, citing insults and terrorism threats as the reasons for censorship. The Constitutional Court, however, does not seem to agree with them.

As mentioned in this previous post, some restrictive changes were made to Turkey’s internet legislation in September of this year when President Recep Tayyip Erdoğan signed a new omnibus bill which further expands authority of the Turkish Communications Authority (TİB) regarding internet restrictions. Last week, however, the Constitutional Court ruled that the TİB’s authority to monitor user data and issue restrictions on websites was unconstitutional. Additionally, this past spring, the court lifted the Turkish government’s ban on Twitter and YouTube, ruling both unconstitutional. The importance of the Constitutional Court to Turkish citizens has greatly increased as Turkey’s ruling political party (AK Parti) continues to pass legislation with relative ease.

The 2010 referendum imposed constitutional changes, and after the latest general election, it has been difficult to oppose the Justice and Development Party (AK Parti) in Parliament.[1] Of the last few hundred proposals, not a single proposal by any of the opposition parties or independent deputies has been approved by Parliament. For AK Parti, however, only one proposal has been rejected by Parliament, and only because the deputies of AK Parti thought the proposal was submitted by the main opposition party, the Republican People’s Party (CHP).[2] The reason for the AK Parti’s success in Parliament is that there is an election threshold of 10% in Turkey, and AK Parti constitutes an “almost absolute” majority in Parliament with around 60% of the seats, even though they only had a little less than 50% of the votes in the last general elections. This leaves the opposition in an ineffective position; however, this state of affairs has brought forward the Constitutional Court as an instrument to overturn some controversial legislation. For many months now, the Constitutional Court has been working like a “court of appeals” for many issues the political opposition could not manage to obstruct in Parliament. In other words, the Constitutional Court is acting as a safety net for Turkey and better connecting the country to the Council of Europe.

The Constitutional Court of the Republic of Turkey is famous for referencing the European Court of Human Rights’ decisions and judgments for its own rulings. For example, the Constitutional Court ruled that an application regarding an alleged local election conspiracy in Ankara was inadmissible because the European Convention on Human Rights does not deal with local election. The decisions and judgments of the Constitutional Court are thus very European-based.

According to the Constitutional Court’ most recent internet legislation related-judgment, the TİB will not have the authority to block access to websites within four hours on the grounds of national security and prevention of crime. The Court also struck down language that gave the TİB the authority to collect usage data from internet service providers (ISPs) without a court order. Now, the TİB will only be able to collect usage and traffic data upon receiving a court order that requires it to do so. This case was brought to the Court’s attention by the CHP. The decision presents an optimistic gain for CHP’s fight against restrictive motions and proposals via the legal system, as the party cannot oppose such legislation in Parliament. Constitutional Court’s detailed judgment on this matter has not yet been published in the Official Register, however, upon publication the judgment is officially effective. For its ruling on similar issues, the Constitutional Court is known to directly cite Article 10 of the European Convention on Human Rights regarding “freedom of expression and information” in its detailed decisions and judgments.

The ultimate question is how long can the Constitutional Court act as a contingency to overturn objected legislation? Legally, not too long. Some of the members of the Constitutional Court can be appointed by the Parliament and the President.[3] Additionally, there is no clause in the internal regulations of the Constitutional Court that requires it to change legislation upon an individual complaint. When one considers that most of the issues regarding internet rights and freedoms are dealt with via individual complaints, this limits the overall benefits of the Constitutional Court for internet users. There is and will be an opposing political party to challenge the ruling party’s legislation, but Turkish citizens will still need the Constitutional Court to keep on stepping up.

[1]The Grand National Assembly

[2]After this mistake was revealed, the AK Parti voted in favor of the proposal.

[3]The Internal Regulations of the Constitutional Court of Turkey, Section Two, and the Regulation on the Duties and Authorities of the President, Article 104.